English law is flexible enough to incorporate a role for sharia as an informal mechanism for dispute resolutionby Thom Dyke / February 29, 2008 / Leave a comment
Following Rowan Williams’s comments on sharia law, Sayeeda Warsi, the Conservatives’s shadow community cohesion minister, said “Williams seems to be suggesting that there should be two systems of law, running alongside each other, almost parallel, and for people to be offered the choice of opting into one or the other… that is unacceptable.”
In fact, Williams suggested nothing of the sort. This was not a call for sharia principles to be “incorporated” into British law by the same formal mechanism that the European convention on human rights became part of domestic law through the Human Rights Act in 1998. Neither was it an argument for the supremacy of sharia law to English law, in the way that the 1972 European Communities Act established the primacy of European legislation.
As the archbishop said, some elements of sharia are fast becoming the default position in Muslim communities throughout the country. While no one knows the exact numbers of sharia courts currently operating, one organisation, the Islamic Sharia Council in Leyton, east London, has dealt with over 7,000 cases since it was founded in 1982. Such bodies are entirely unregulated, and no formal qualifications are required to hand down interpretations of Koranic law.
So there is a need to clarify the role of the state. But the archbishop stopped short of mapping out the intellectual space in which sharia might be accommodated within the framework of English civil law. This raises the question of how large that space should be, and what form it should take.
Such an acceptance of alternative systems of jurisprudence in the English legal system would not be without precedent. Much of the media commentary on Williams’s speech assumed that English law exists in a vacuum, independent of external influence. However, this is a purblind view. As a common law system which has developed organically to take into account jurisprudence from all around the world, in addition to both EU law and international treaty obligations, English law is more than capable of evolving to deal with new social tensions.
Indeed, there is a precedent for recognising the existence of distinct religious jurisprudential space found in the development of canon law, which allows the Church of England suzerainty over church property and discipline of the clergy. Other parts of civil society have been faster to acknowledge the changing face of British society, such as the banking sector, which offers…